Legal Docket: Religious liberty battles

NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is May 27th, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Well, the Supreme Court is closed today in observance of Memorial Day.

That means we can expect rulings to be handed down tomorrow morning, several hours after we finish the Tuesday program. So I’ll have analysis on those ready for you Wednesday morning.

About half the argued cases are still left to decide, and so 34 rulings will be coming in fast and furious through end of June.

Some of the “biggies” we’re waiting for:

• the Bladensburg Cross Memorial (American Legion v The American Humanist Association)
• fhe citizenship question on the 2020 Census form (Dept of Commerce v US District Court for the Southern District of New York) 
• the partisan gerrymandering cases (Cause v Rucho) 
• the power of federal agencies to interpret ambiguous regulations (Kisor v Wilke) 
• and a double jeopardy case.That’s the one where Terance Gamble challenges his dual sentences for the same crime by a state and by the federal government. (Gamble v United States) 

Oftentimes, the cases that capture the most media attention come down last. Almost always.

EICHER: Right, always, except in the case of the exceptions!

REICHARD: Yes sir, with that exceptions clause, you’re always correct.

EICHER: So the plan is we’ll bring those rulings to you each week until they’re all in.

Oh, and I should mention also, if you have a topic to suggest to Mary, a legal topic you’d like her to dive into over the summer, during the Supreme Court’s recess, please let Mary know about it.

REICHARD: Yes, I want to hear from you, and I’ve heard from some of you already.

The easiest way to do that is to hit my Twitter account, which is “at Reichard World” — my last name R-E-I-C-H-A-R-D and where I work, “WORLD,” so on Twitter I’m “at Reichard World.” My pinned Tweet there is where I’ll look to see your ideas. Just add your comment there and I’ll see it.

I can’t promise I’ll cover what you suggest, but I will certainly consider it. And as you’ll see, I’ve collected a couple of good ideas already. So add yours soon, so I can get the summer planned and research the stories.

EICHER: OK, Mary, so what’s on the agenda today?

REICHARD: Yeah, I find it useful to listen to what’s happening in the lower courts to find out what’s bubbling up from there: Threats to religious liberty and our other first amendment rights emerge at ground level, right where you and I live.

It takes diligence to protect those rights.

One way to show diligence is for faithful Americans actually to exercise those rights — expressing your faith publicly, openly. By doing that, we show how faith has vitality in everyday life.

Another way to show diligence is persevering through court battles.

Several organizations exist that are devoted to first freedom protections. One of them is First Liberty Institute. I called up its Chief of Staff, Michael Berry, to talk about some lower court cases he’s working on.

I asked him to begin by talking about a case out of Virginia where senior citizens are threatened with eviction for having a Bible study. I asked him to flesh out some of the facts for us.

Let’s listen.

BERRY: This case involves a First Liberty Institute’s client, Ken Hauge. Ken is a senior citizen who lives in a senior living facility there in Virginia, kind of in the northern Virginia area. And Ken is also retired Lutheran Minister. And he and his wife recently received actually a notice threatening eviction. So not an actual eviction notice, but a notice threatening eviction. One of the allegations was that because he leads a Bible study that violates the provisions of his lease. You know, this is just outrageous that a senior retirement living community would threaten to evict one of their own residents and citizens simply because he is leading a Bible study. And they claim that those types of religious activities are forbidden. Now the interesting thing about the case is that when Ken was leading the Bible study or when he leads the Bible study, he does so in what’s called a “community room.” And the senior living center says that, well, even though it says it’s a community room, it can’t be used for any type of religious activities or religious services, which is just outrageous.

REICHARD: Well, now, if the lease says X, and they signed it, and they don’t follow what the lease says that they signed, what’s the analysis there? How do you think through that?

BERRY: Well I think you can put it like this, that you can ask somebody or demand that somebody signs a lease provision or a contract provision, but if that provision itself is unconstitutional, then it should not be enforceable. And in this case, it’s really a form of religious hostility and religious discrimination, right? To say the only way you can live here is if you give up your first amendment rights and your religious freedom? That’s not an enforceable provision. And, and so we’re going to have to get a federal judge perhaps to tell them that they’re wrong.

REICHARD: OK, let’s move on to another case, this one out of New Hampshire. There, a Bible is on display at a Veterans Administration clinic. The bible was carried by Herman Streitburger who was held captive in a German prisoner of war camp during WWII. He donated it to the VA. But the Military Religious Freedom Foundation sued, arguing that the government establishing a religion in violation of the Establishment Clause of the First Amendment. So Michael, how should that one be analyzed?

BERRY: I can’t, I don’t even know where to begin in describing how many ways that, that, that this lawsuit is just flat out wrong. And the lawsuit, as you mentioned, was filed by the very deceptively named Military Religious Freedom Foundation. They stand for anything but religious freedom and their agenda is really to eradicate religious freedom in the military. So here’s the deal. The VA policy as it currently stands, says that each individual VA facility can decide whether they’re going to allow private organizations to put up a display like this. Often they’re called “missing man” displays. That’s just kind of the, the colloquial term that people use,  is a missing man display or a remembrance display of some kind. And the VA permits people, private organizations to include religious symbols such as bibles in the display. And that’s really consistent with the history of these types of displays, which goes back decades. A Bible had traditionally has been part of that display, and it’s really at its inception, the Bible was meant to symbolize the strength gained through faith that allows the POW or the person who’s missing in action to sustain themselves and survive. That’s what the Bible symbolizes. And so the VA just says, look, we’re going to allow an organization to put up a display because it’s consistent with the VA’s mission. Our clients, First Liberty clients, the Northeast POW-MIA network took advantage of that and put up a display. And as you mentioned, uh, one of the members of the Northeast network, Herman Streitberger donated his own Bible to be included in that display. So really the MRFF is barking up the wrong tree here, right? They sued the VA saying that the VA is the one that’s, that’s violating the constitution. No, no, no. The VA just simply says we allow organizations to do this.  

REICHARD: OK, last case. This time out of Texas. The city of Magnolia wants to charge for water use according to what kind of organization is using water.  So commercial businesses charged one way, and institutional organizations—I’m not sure the difference— are charged for water in another way. What’s wrong with that? 

BERRY: Well this is another one where we file it under “You can’t make this stuff up.” In the government’s unquenchable quest and thirst for more money they decided that they would come up with, concoct this little scheme where they would begin charging an “institutional” water and wastewater fee, but it only applies to tax exempt or nonprofit organizations like churches. And First Liberty Institute happens to represent three churches from Magnolia, Texas who are now affected by this quote unquote “institutional” water fee. Now the, the city wants to call it a fee, but it’s really tax and it’s a tax on, you know, on an organization that otherwise is supposed to be tax exempt under the law. Right? I mean, there’s a reason why they call them tax-exempt organizations. And so the fact that they say, well, it’s not a tax, it’s a fee that that doesn’t make it legal all of a sudden. Right? It’s not like sprinkling pixie dust on something and then somehow that makes it legal. And so First Liberty Institute has filed a lawsuit on behalf of, uh, of the three churches that we were present against the city of Magnolia basically saying, look, you’re breaking the law, you’re violating the law. And the fact that you call it a fee doesn’t mean that it’s, it’s not a tax. It is a tax. And by the way, you don’t charge anyone else that tax. You only charge it to churches and nonprofit organizations.   

REICHARD: You’ve been doing this work for a long time now. Do you think government authorities are more emboldened to use plausible pretenses and euphemisms to attack religious rights? Are you seeing that?

BERRY: I think we are in certain circumstances, yes. I certainly, especially in my line of work being a military veteran and doing a lot of work in the military. I’m really surprised at how widespread it is, particularly in the military. I was kind of surprised to be honest, that something like the one we just mentioned in Magnolia, Texas, I mean, Magnolia is deep in the heart of Texas, you know, and I would not have expected that to happen in a place like that, but it just goes to show, you know, that the government is still the government wherever you are. Right? And, and when the government sees that there’s an opportunity to, uh, to get more money, alright, and even if it means imposing a tax when the law prohibits you from doing so, uh, sometimes they are emboldened to do that, right?  They think either they think they can get away with it or maybe a lot of cases, look, I’m willing to, um, give the benefit of the doubt and say, it may be that they’re just misinformed and they don’t realize or understand the law protects churches and nonprofits from being taxed in that way. And so it’s our, it’s our I know, obligation and an opportunity really to go in and educate them and say, no, no, you can’t do that. And there’s a reason a policy reason and there’s really a good social reason why we don’t tax churches and nonprofits. It’s because they provide so many goods and services to the community already that benefit the community.

REICHARD: Michael Berry is Chief of Staff for First Liberty Institute. Thanks so much for your military service and for talking with me today.

BERRY: Thank you for having me.

(AP Photo/Patrick Semansky) The U.S. Supreme Court building at dusk, Thursday, May 23, 2019, on Capitol Hill in Washington. 

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